Most of you know that the Court hears cases during two-week sessions every month from October to April. During most sessions, the Court will hear 8-12 cases and majority opinion assignments are distributed equally for each session. In other words, if there are nine cases for the October session, each justice will write one majority opinion. If there are eleven cases, seven justices will write one opinion and two will be assigned double duty.
This pattern holds true with surprising frequency. Oddly enough, there were two months during OT 09 where the Court didn’t follow its usual opinion distribution. During November, when the Court heard eleven cases, Justice Stevens did not author any majority opinions.
During December, when the Court heard nine opinions, Justice Kennedy did not author any majority opinions and Justice Ginsburg authored two.
There are strategic reasons for this anomaly. One scenario occurs when the Court hears only 9 cases and one justice is integral to bringing a majority together in two cases. For example, if Justice Kennedy was the decisive vote in two 5-4 majority and the senior justices in both (perhaps even the same justice) determines that it is important for Justice Kennedy to author both, there would likely be no interference from the other members of the Court.
Unfortunately, that scenario isn’t likely to have played out here. In November, there were five 9-0 or 8-0 opinions and Justice Stevens joined four of them in full. Two of the ones that Justice Stevens joined in full – Beard v. Kindler and Kucana v. Holder – were written by authors who had already been given another assignment for the month. At least in theory, either case could have been given to Justice Stevens without impacting the lineup of the unanimous decision. Justice Stevens dissented in only two cases out of the nine decided during November.
During December, Justice Ginsburg had two majority opinions and Justice Kennedy had none. Justice Kennedy dissented in an unusually high number opinions that month – four out of nine – but there were several instances where he joined a majority opinion in full. In Florida v. Powell, for example, Justice Kennedy joined Justice Ginsburg 7-2 majority opinion and could have authored the majority to give each justice exactly one majority opinion for the month.
The odd distribution from the November and December compounded to create an imbalance going into the holiday season. That imbalanced lasted throughout the term, as you can see in the chart below.
Compare that to the distribution after December and the total distribution for OT 08. [I've included Citizens United as a OT08 case]
There are a variety of conspiracy theories about why an aberration like this could occur. During OT99, for example, Justice Stevens didn’t author any opinions from the April session because – as the story goes – he lost the majority in Boy Scouts of America v. Dale to Chief Justice Rehnquist when Justice Kennedy flipped sides while opinions were being drafted. If that happened here, it might explain why Justice Kennedy didn’t author any opinions in December. Honestly though, from the set of cases in November and December, I can’t see where that would have happened. The fact that Justice Kennedy didn’t author any opinions in December also tells me that the court already knew something was awry when it distributed opinions for that month. My guess is that the December distribution was a reaction to something that had happened after the Court’s last conference in November.
The obvious reason, and the one discussed by Tom Goldstein here, is that Justice Stevens lost the majority opinion to Justice Kennedy somewhere in the drafting process. The fact that Justice Stevens’ concurring opinion reads like a majority opinion supports this theory.
At the beginning of Section I of his opinion, Justice Stevens writes:
Although the Court provides a brief statement of facts, a more complete explication may be useful for those unfamiliar with petitioners’ patent application and this case’s procedural history.
That seems like a convenient excuse to use the same statement of facts that was originally drafted for Section I of the majority opinion.